Citation Nr: 21042181 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-24 504 DATE: July 12, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss is denied. FINDING OF FACT At no time during the appeal period has the Veteran's bilateral hearing loss been manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level II in the left ear. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for bilateral hearing loss have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1961 to October 1971. He passed away in November 2017, and the Appellant, his surviving spouse, was recognized as the substitute claimant in May 2019. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development and it has since returned for further appellate review. The Board finds that there was substantial compliance with the December 2019 remand directive to obtain any outstanding VA treatment records and afford the Appellant the opportunity to identify any outstanding pertinent evidence. Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability Rating for Bilateral Hearing Loss Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran was assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, for bilateral hearing loss. This claim stems from a November 2012 claim. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d). To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Tables VI, VIA. In order to establish entitlement to a compensable rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met. The results of the pure tone audiometric test and speech discrimination test are charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when an exceptional pattern of hearing loss is shown, specifically when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. When the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more in a particular ear, determination of the level of hearing acuity in that ear will be made using either Table VI or Table VIA, whichever results in the higher numeral. Id. Following a claim for service connection, the Veteran underwent a VA examination in September 2013. The Veteran described the functional impact of his hearing loss as having difficulty understanding people. An audiogram yielded the following results with pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 55 55 60 75 61 LEFT 35 40 50 70 49 The average decibel loss was 61 decibels in the right ear and 49 decibels in the left ear. Speech discrimination scores were 64 percent in the right ear and 88 percent in the left ear. Based on Table VI, the Veteran had Level VI hearing acuity in the right ear, and Level II hearing acuity in the left ear. Applying Table VII, a 10 percent rating was warranted. In April 2016, the Veteran underwent another VA examination. He reported that due to his hearing loss he cannot understand words clearly, with the right ear being worse than the left ear. An audiogram yielded the following results with pure tone thresholds, measured in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 70 70 70 80 73 LEFT 40 45 50 65 50 The average decibel loss was 73 decibels in the right ear and 50 decibels in the left ear. Speech discrimination scores were 88 percent in the right ear and 100 percent in the left ear. Based on Table VI, the Veteran had Level III hearing acuity in the right ear, and Level I hearing acuity in the left ear. Applying Table VII, a noncompensable rating was warranted. Based on a review of the objective evidence of record in light of the statutorily mandated method of evaluating hearing difficulties, the Board finds that the audiometric findings demonstrate that the Veteran was entitled to a 10 percent rating for hearing loss during the period on appeal. The Board acknowledges the April 2016 VA examination findings but gives it less probative weight as the Veteran reported that the examiner was rude and did not properly examine his hearing loss. To the extent the Appellant asserts that a rating in excess of 10 percent is warranted, the Board has carefully considered the lay statements made by the Veteran regarding his inability to hear well and needing look at people to be able to understand him. See May 2016 Substantive Appeal. The Veteran was certainly competent to describe his hearing loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board emphasizes again that disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The functional impact that the Veteran described in his Substantive Appeal and at his September 2013 VA examination is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint was reduced hearing acuity and clarity, which was what is contemplated in the rating assigned. The evidence does not show valid audiology studies that meets the criteria for a rating higher than 10 percent for hearing loss. In coming to the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.